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Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009523-004

03/02/2017

Date of Adjudication Hearing: 25/10/2018

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section8 of the Unfair Dismissals Acts, 1977 - 2015,and Section 13 of the Industrial RelationsActs 1969 and Section 11 of the Minimum Notice and Terms of Employment Act 1973,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complaint under the Organisation of Working Time Act 1997 was withdrawn.

Background:

The Complainant was employed as a Home Help from January 1996 to October 2016. She was retired on the grounds of ill health following a prolonged period of sick leave. She had a grievance which it is contended was never fully resolved. The Complainant seeks redress for unfair dismissal. She further contends that the Respondent did not follow due process and did not afford her a duty of care. The Complainant also seeks payment for statutory minimum notice.

Summary of Complainant’s Case:

The Complainant worked as a Home Help for almost twenty years and loved the work. She expected to work until age 70 and she was not in the public service pension scheme. In May 2014 she experienced some traumatic incidents with a client which impacted very seriously on her well being. The client and his wife had been provided with new hoist equipment which they were having extreme difficulty with, causing distress to the extent that they expressed suicidal thoughts. The Complainant discussed the issue with her Supervisor who advised her to go home and take a few days off. The Complainant visited a GP and went on certified sick leave from 19th May 2014. It is contended that the Supervisor rang the Complainant regularly and made smart comments to her and that this constituted a form of harassment. The Complainant attended Occupational Health in October 2014 and the Occupational Health Physician identified that she was suffering from stress and encouraged her to raise her workplace issues through the grievance process. Correspondence from the Complainant’s Union requesting a meeting to discuss the grievance went unanswered. Finally, after more phone calls and correspondence dates in February 2015 were offered to the Union. The Union responded by requesting that the Complainant did not wish to meet directly with the Supervisor as the grievance related to the Supervisor. The meeting never happened and the grievance was not heard. By July 2016 over two years after the issue, the Complainant had again attended Occupational Health who professed some shock at the lack of engagement on the issue. A meeting did take place on 16th September 2016 at which the Complainant had an opportunity to raise her issues. The next correspondence she received from her Employer was dated 19th October 2016 advising her that her employment would cease on 23rd October 2016. It is submitted that the Complainant never received an outcome of her grievance despite a lapse of two years and instead she was dismissed from her employment. She had expected to remain working for many years, and her livelihood and ability to earn has been diminished by the actions of the Respondent. It is contended that the lack of duty of care towards her has left a devastating affect on her mental, physical and financial health. Maximum compensation should be awarded and considered appropriate in the circumstances.

Summary of Respondent’s Case:

The Complainant returned from annual leave on 13th May 2014. She was advised of changes recommended by physiotherapy and occupational therapy in relation to transfer hoist for Client X. This involved a full hoist with assistance of two Carers. She complained about the new arrangements as she would now have to work with Agency workers. The Client and his wife expressed a statement that “maybe we will take a box of paracetamol”. The Complainant got very upset and left the house. She reported the incident to her Line Manager who advised her to attend her GP and she also offered the services of Occupational Health and Employee Assistance. The Complainant was on certified sick leave from this time and attended Occupational Health on a number of occasions. In the meantime, the Line Manager contacted the client’s wife who stated that the Complainant was upset and that she had lost weekends due to agency workers. The client’s wife stated that the Complainant wanted her to write a letter of complaint to the Respondent concerning agency staff but the client and his wife had no wish to do so. The client’s wife further stated that she had made the comment about paracetamol in jest. The Complainant attended Occupational Health in June, July September, October and December 2014. She further attended in January, February 2015 and September 2016. In relation to the Complainant’s claim that she was harassed while on sick leave, it is submitted that there is a contradictory element to this claim. On the one hand, in January 2015 the report from Occupational Health states that the Complainant was upset that there was no direct communication from management, yet a letter from the Union in November 2014 stated that the Complainant had felt harassed by phone calls made to her while on sick leave. The Union requested a meeting but did not then show up for one scheduled for 26th February 2015. The parties met on 16th September 2016 where the Complainant stated her disappointment at what she perceived as lack of support from management. She also stated that she felt she was not in a position to return to work and would never be in a position to do so. Management stated at that meeting that they were disappointed that she had made the decision not to return to work and that there were no barriers from the Respondent’s side to her returning to work. On her last visit to Occupational Health, on 28th September 2016 the medical report stated that the Complainant would not regain fitness to return to work before normal retirement age and in that case an application for retirement on ill health grounds was appropriate. The Complainant retired on ill health grounds as per the recommendation on 23rd October 2016. All outstanding monies including annual leave were paid to her and she was reimbursed for expenses incurred while attending Occupational Health. It is argued that as the Complainant retired on ill health grounds based upon a medical recommendation she was not unfairly dismissed.

In relation to the Industrial Relations issue, it is submitted that the Complainant had an issue with agency workers who she perceived were taking hours she would have worked. Following an incident, she went on extended sick leave. Throughout this period, she refused to engage with her line manager and the opportunity to discuss the issue never arose. The Respondent is of the opinion that what started as an issue over agency use developed into a grievance against her line manager and ultimately led to the Complainant retiring on ill health grounds. The Respondent is satisfied that local management made every effort to try to resolve the issue.

In relation to minimum notice, as the Complainant retired on ill health grounds the Respondent is not aware of any issue in relation to notice.

Findings and Conclusions:

Based on the evidence and submissions I find as follows:

CA-00009523-001

Unfair Dismissals Act 1977

The Complainant went on sick leave on 19th May 2014 following an incident at work which led to a grievance she had in relation to how the Respondent treated her during what was a very lengthy period lasting from then until October 2016, some two and a half years. I note that the Complainant’s Union tried on a number of occasions to have a grievance meeting, which ultimately took place on 16th September 2016, some 10 months after the grievance was formally lodged. The Complainant then got the opportunity to state her case. She perhaps unwisely stated to the employer that she could not see herself returning to work, as soon after that meeting, she received a letter dated 19th October 2016 noting that she would cease employment on 23rd October 2016. Effectively, although the Respondent deemed the Complainant to have retired on ill health grounds, she had no pension entitlements and was dismissed from her job and deprived of any possible future livelihood.

“in this case, it was the ill health of the plaintiff which the company claimed rendered him incapable of performing his duties…For the employer to show that the dismissal was fair, he must show that:

(1) It was the ill health which was the reason for his dismissal;

(2) That this was substantial reason;

(3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

(4) That the employee was afforded the opportunity of being heard”.

I note particularly in this instant case that the Complainant’s grievance was not fully concluded when she received a letter quite out of the blue to tell her that her employment was ceasing 4 days later. There was no opportunity afforded to her of being heard.

For these reasons, I uphold the Complainant’s claim that she was unfairly dismissed. I consider that compensation in the amount of €21,840 being the equivalent of 52 weeks pay is appropriate in the circumstances, and I require the Respondent to pay to the Complainant this amount.

CA-00009523-002

Industrial Relations Act 1969

The long delay in processing the Complainant’s grievance, 10 months after the complaint was lodged is unacceptable. The level at which the Complainant’s complaint was to be dealt with initially was not in accordance with fair procedures. The fact that the Complainant’s grievance was then never formally ruled upon is a further flaw in the process. I find that the Complainant should be compensated for the stress all of this visited upon her and I recommend that the Respondent offer the Complainant a compensation sum of €5,000.

CA-00009523-003

Minimum Notice & Terms of Employment Act 1973

The Complainant’s service with the Respondent entitled her to 6 weeks minimum notice under the Act. I uphold her claim and require the Respondent to pay her the amount of €2,520.

Decision:

CA-00009523-001 Unfair Dismissals Act 1977

I uphold the Complainant’s claim that she was unfairly dismissed and I require the Respondent to pay to the Complainant the amount of €21,840.

Recommendation:

CA-00009523-002 Industrial Relations Act 1969

I recommend that the Complainant should be compensated in the sum of €5,000.

Decision:

CA-00009523-003 Minimum Notice & Terms of Employment Act 1973

I uphold the claim and require the Respondent to pay the Complainant the amount of €2,520.